Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

28 March 2007

Dan Brown's Body

Before diving into the appellate decision in Baigent v. Brown  affirming the trial court's decision that Dan Brown's reprehensible "fictional" dreck The DaVinci Code did not infringe upon the almost equally reprehensible "nonfictional" dreck The Holy Blood and the Holy Grail  just one quick follow-up. Not everyone agrees that CDs are quite dead yet. It won't be a quick death, like some flunky in an action movie; it'll be a slow, lingering death, a Wagnerian "Liebestod"(MP3, opens in new window)1... with plenty of remaining opportunities for the quick-witted to profit.

On to the main event. The two authors of a frankly crackpottish "historical study" (and those quotation marks are used advisedly  not on the basis of research, but on the basis of analysis and insight, or rather the lack thereof) sued the publisher of a frankly crackpottish "historical thriller" (ditto) for copyright infringement in the UK, claiming that the later work of avowed fiction plagiarized essential elements of their "study." In July of last year, the Hon. Peter Smith, after hearing extensive testimony,2 held that

338. The destruction of Mr Baigent's evidence shows that the Claimants have not in my view created the Central Theme as alleged as a substantial part of HBHG by their time and effort (as opposed to writing HBHG generally). It is true that the determination of that issue is for me and not Mr Baigent but the destruction of his evidence reinforces my own view that the Central Themes are not a substantial part of HBHG and they have not been substantially copied by Mr Brown in DVC.

Baigent v. Random House Gp., Ltd., [2006] EWHC 719 (Ch). Although the Court of Appeals disagreed on some of the details, it ultimately came to the same conclusion earlier today.

99. (v) In any event (this being the judge's principal ground for decision) although the relevant eleven Central Theme elements were to be found in both books, the claim depended on showing that the Central Theme propounded was a central theme of HBHG, sufficient to qualify as a substantial part of the work, albeit as a combination of features obtained by abstraction, as described by Lord Hoffmann in paragraph 24 of Designers' Guild, and this assertion by the Claimants [Baigent] was not justified, because the Central Theme was not a theme of HBHG at all, but rather was no more than a selection of features of HBHG collated for forensic purposes rather than emerging from a fair reading of the book as a whole. The basis of the Claimants' contention that the Central Theme was a substantial part depended entirely on showing that it was a central theme of the book and, as appears from the passages which I have quoted at paragraph [70] above, was really the central theme of the book. The judge rejected that contention on the facts. It does not seem to me that it was necessary for him to provide any further explanation for his conclusion that, whatever elements (if any) were copied from HBHG, they did not amount to a substantial part of it.

The real problem with this opinion  and its application to other instances alleging plagiarism of a work through adoption of its central theme  is that it is so fact-bound. Unfortunately, the English courts are still struggling to find language to delineate the idea/expression dichotomy. Although US courts still struggle with the issues, at least our Supreme Court has made the boundaries clear.

This Court has long recognized that the fact/expression dichotomy limits severely the scope of protection in fact-based works. More than a century ago, the Court observed: "The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book.".... This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.

499 U.S. 340, 35051 (1991) (citations and internal block quotation omitted). Unfortunately, UK practice persists in using language explicitly disavowed in Feist in describing what a nonfiction author brings to a book; in this instance, Lord Justice Lloyd persists in the same ill-chosen language at paragraph 85 ("there is nothing in the Central Theme that can be seen as being the product of the skill and labour involved in the creation of a literary work, so as to be properly eligible for protection under copyright law") (emphasis added). This is perhaps softened, in one sense, by Lord Justice Mummery's thoughtful formulation in his concurring remarks:

155. Of course, it takes time, effort and skill to conduct historical research, to collect materials for a book, to decide what facts are established by the evidence and to formulate arguments, theories, hypotheses, propositions and conclusions. It does not, however, follow, as suggested in the Claimants' submissions, that the use of items of information, fact and so on derived from the assembled material is, in itself, "a substantial part" of HBHG simply because it has taken time skill and effort to carry out the necessary research.

Baigent, 2006 EWCA. This is in part an artifact of the differing means of delivering opinions between the US and UK; it is an example of one way that US practice is clearly superior.

That, however, is primarily of interest to theorists, like me. The juicier bits  the stuff of more interest to everyone else  appear much earlier in the opinion. Dan Brown (and his lawyers) look even worse from Lord Justice Lloyd's summary at paragraphs 3950 of the Court of Appeals' opinion than they did in the corresponding parts of Judge Smith's opinion (paragraphs 195223, 343351). An undercurrent running through Lord Justice Rix's concurring opinion indicates a distaste for both sides that seems well-justified.

106. The test of copyright infringement is an objective one. As Lord Justice Lloyd has pointed out, it is not necessary to prove a guilty mind to establish liability, and it is no defence to prove an innocent mind if in fact a substantial part of a copyright work has been copied. Nevertheless, it may be observed that in writing the Langdon/Teabing lectures Mr Brown has acknowledged the use of HBHG as a source for the lectures' ideas in HBHG both cryptically, since Leigh Teabing is an anagram of Messrs Baigent and Leigh, and straightforwardly, when he has Teabing show HBHG to Sophie, describing it as "perhaps the best-known tome" on the subject and recording its claim to be "The Acclaimed International Bestseller". That is not the mark of an author who thought that he was making illegitimate use of the fruits of someone else's literary labours, but of one who intended to acknowledge a debt of ideas, which he has gone on to express in his own way and for his own purposes.

At first blush, this doesn't seem so condemning; try reading it after the two preceding paragraphs!

The bottom line for authors, then, is that documentation of sources remains critical. Had Dan Brown been able to document his research at the synopsis stage, and later at the book stage, by other than hazy recollections from several years later that remained largely unconvincing, this would have been a vastly simpler case. It's all well and good to acknowledge "a debt of ideas" in the text, particularly if one "express[es the ideas] in [one]'s own way." That, however, is insufficient. Even fiction-writers need to keep documentation of their research  especially given US law's expansive "alternate source" doctrine, which was largely irrelevant on the facts in Baigent but would have been a devastating defense... had Dan Brown (and his wife) kept adequate records of their alternate sources.

The irony that this link goes to an authorized MP3 outtake from a CD is purely intentional.

In the UK, unlike the US, there is no jury trial right in a copyright infringement action. Cf. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) (holding that the Seventh Amendment establishes a jury trial right under US law for any claim of damages).

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